Dicey on Law and Public Opinion in the 19th Century

Source: Albert Venn Dicey, Lectures on the Relation between Law and Public Opinion in England during the Nineteenth Century, edited and with an Introduction by Richard VandeWetering (Indianapolis: Liberty Fund, 2008). Introduction to the Liberty Fund Edition

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Introduction to the Liberty Fund Edition

“Law + Opinion” is the best thing I have ever written + much more mature than the “Law of the Constitution.”1

in the last decade of his life Albert Dicey repeatedly claimed that Lectures on the Relation between Law and Public Opinion in England during the Nineteenth Century was his “best” and most “mature” book.2 This was peculiar coming from the author of the famous and authoritative The Law of the Constitution. Why did he favor Law and Opinion? It was a mature work in several senses; the product of great age, of a long process, and of long-held beliefs. It articulated the beliefs and fears of a typical intelligent English Edwardian Benthamite Liberal responding to the apostasies of Gladstonian Liberals and to the socialism of J. S. Mill, Asquith’s Liberals, and the British Labour Party. Law and Opinion therefore also has an elegiac aspect: a mature writer facing the displacement of his cherished theories by irresponsible new experiments.

Albert Venn Dicey (1835–1922) wrote Law and Opinion near the end of a long and productive life. In 1905 he was seventy, and by the time of the second edition, in 1914, he was seventy-nine. Dicey’s life spanned the Victorian era, and he knew personally many of the important Liberal thinkers in English politics and letters. Dicey came from a typical Liberal family. His father, Thomas Edward Dicey, was a Whig reformer and the editor of the family newspaper, the Northampton Mercury. His mother, Anne Mary Stephen, came from a leading Evangelical family.3 While Dicey was not particularly religious, in either a spiritual or a dogmatic sense, he embraced the humanitarian mission of the Evangelicals.4 Dicey noted that Benthamite Liberals and Evangelicals were the leading forces of reform in nineteenth-century England. Both groups believed in the individual’s duty to promote reform (78).5 Dicey himself accepted these duties.

Dicey’s experiences when he went to Oxford in 1854 reinforced these beliefs. He was one of a generation of earnest, hardworking young Liberals who excelled in their studies. They gravitated to John Stuart Mill’s writings. Mill’s Political Economy (several editions starting in 1848) and On Liberty (1859) dominated political discussion and, in Dicey’s view, promoted a rigorous Liberal Benthamism (361, 363, 130, 275). Some of the most talented joined the Old Mortality Society, an undergraduate discussion group Dicey helped found in 1856. These young men were interested in politics and reform, and many were influential in English politics and letters for the next half century.6 Dicey developed some of his most important friendships in this group, including with James Bryce, who was later a Liberal M.P., cabinet minister, ambassador to the United States, and author of The American Commonwealth. As Richard Cosgrove notes, Dicey’s basic beliefs were in place by the time he left Oxford in 1861, and to them he remained true.7

Dicey spent twenty years as a journalist, a practicing lawyer, and as a political hopeful. He contributed to Essays on Reform (1867), a prominent Liberal project.8 He also wrote several legal texts that helped gain for him in 1882 an appointment to the position of Vinerian Professor of English Law at Oxford. This chair had once been held by Sir William Blackstone, who features prominently in Law and Opinion. Dicey became famous as a legal scholar and for the book Introduction to the Study of the Law of the Constitution (1885). Dicey was pleased with the impact of the book. It was cited in Parliament by Gladstone within a year of its publication and was used as an “educational manual” in universities.9

In a 1911 letter, Dicey identified himself as belonging to the “Mid-Victorian” generation.10 He was certainly Victorian in his work ethic. I do not have a comprehensive list of books and articles, but Cosgrove has a bibliography of five pages, and this does not list the hundreds of contributions Dicey made to the Times, the Nation, and the Mercury.11 The second edition of Law and Opinion was published when Dicey was seventy-nine, but it was not his last book. He produced a 1915 book on World War I, another in 1917 on Wordsworth, and his final book in 1920 with Robert S. Rait on the Scottish-English Union. What made this all the more remarkable was that Dicey had had to cope with physical infirmities from his youth that left him weak and unable to write for any length of time.12

By the time of the publication of the second edition of Law and Opinion, Dicey had been working on these lectures for seventeen years. After finishing writing the useful but dense 1896 legal text A Digest of the Law of England with Reference to the Conflict of Laws, Dicey wished to pursue a more interesting area of research.13 He considered writing on the spirit of constitutions, but it was a late 1897 invitation from Charles Eliot (the president of Harvard) to deliver a set of lectures that prompted Dicey to think in terms of law and public opinion.14 He had been interested in the topic of public opinion since 1848, when he wondered why England had not been tempted by the continental revolutions.15 However, in 1897 his interest was prompted by some worrying trends involving English public opinion and legislation. As a portion of the working class had obtained political power (especially after the expansion of the electorate by the 1885 Reform Bill), collectivist, (or socialist) ideas had become politically prominent. Worse, Dicey felt that the Liberals had not remained true to the Benthamite liberalism that Dicey had adopted at Oxford. The liberal hero Mill declared himself a Socialist just before his death in 1873. During the 1880s and 1890s New Liberals accepted collectivist policies as solutions to political problems. Further, in the 1880s Dicey became estranged from even more Liberals when the Gladstonian wing of the Liberal Party embraced Home Rule to deal with Irish unrest. Law and Opinion was in part Dicey’s attempt to understand these changes.

Dicey welcomed the chance to visit the United States. He had visited in 1870 with James Bryce and counted it as a formative event, opening his eyes to a non-English political system, without which Law and Opinion would never have been written.16 During October and November 1898 Dicey delivered eleven lectures at Harvard under the title “Development of English Law during the Nineteenth Century in connection with the Course of Public Opinion in England.”17 He thought they went well, despite the large room and large audience.18 Other accounts were not flattering. Even before the series started, Dicey noted some difficulties with his voice.19 Additional problems could be related to the content of the lectures. Dicey could be critical of the American political system (for example, he was not a fan of federalism nor of a factional or party-based democracy), and his lectures were so Anglo-centric and sometimes self-congratulatory that it is easy to imagine an American audience becoming impatient with him.20 Trowbridge Ford notes that the audiences were not impressed by Dicey, and the lecture series petered out.21

Upon his return to Oxford, Dicey gave several versions of these lectures to his law students and in April 1903 sent a proposal to Macmillan, the London publishers, to publish them, including a draft of the first six lectures. Dicey’s Law of the Constitution was a reliable seller for Macmillan, and Frederick Macmillan quickly responded affirmatively, agreeing to pay £300 for an edition of 3000.22 Dicey promised the manuscript for October 1903, then April 1904, and then October 1904. Delays occurred because of the weight of Dicey’s workload, but also because he consulted friends and experts for various parts of the book—for example, Bryce helped Dicey on the discussion of the definition of democracy.23 The book was published in May 1905.

Dicey was pleased with the reception of Law and Opinion in both England and the United States. It was translated into French in 1906, and Dicey noted that it was the basis for several examination questions at Oxford.24 By 1912 the first edition had nearly sold out, and Macmillan was willing to publish another edition. Dicey—now in his late seventies–did not feel capable of doing a complete revision (Law and the Constitution also needed doing) and therefore elected simply to add a new introduction to the book.25 The new introduction replaced his very short Note V, “Proposed Collectivist Legislation of 1905,” found in the appendix of the first edition. Again, Dicey underwent the consultations with friends and experts, the promises made to editors and the deadlines missed, and the agony of writing, The book was basically finished in April 1914. The consciousness of his advancing age was ever present, even in his humorous desire to be paid at publication rather than via royalties that would only go to his executors.26

It is not outlandish to consider Law and Opinion as Dicey’s mature and final testament.27 The book may be divided into three parts. Lectures I to III define “public opinion.” Lectures IV to IX are a history of public opinion in nineteenth-century England. Lectures X to XII and the appendices are generally dedicated to specific types of legislation. We will concentrate on the first two parts.

The purpose of the first three lectures is to define the term “public opinion” and to discuss its importance in England. Dicey defined the term “in reference to legislation.”

This term, when used in reference to legislation, is merely a short way of describing the belief or conviction prevalent in a given society that particular laws are beneficial, and therefore ought to be maintained, or that they are harmful, and therefore ought to be modified or repealed. And the assertion that public opinion governs legislation in a particular country, means that laws are there maintained or repealed in accordance with the opinion or wishes of its inhabitants (4).

He briefly tells us what did not count as public opinion. It is not custom or habit; neither is public opinion the same as the set of ideas held by a small group around a leader.

Dicey believed that nineteenth-century England was the best example of a country in which public opinion ruled. Public opinion ruled in England, first, because England was an “advanced civilisation” (5). He does not go into detail about what he means by this. Second, the English Constitution was well-suited for allowing public opinion to express itself. It was a democratic state, and therefore public opinion had a direct influence on the making of laws. Please note that in 1905 England did not have universal male suffrage (unlike the United States), and no women had the vote, and that Dicey thought that this was for the best. Dicey also thought that England was better able to respond to public opinion because it was a unitary rather than a federal state. Thus Dicey believed that the English political system was more responsive to public opinion than the American.

Nevertheless, Dicey was concerned about the future of English democracy. This was related to several issues little-mentioned in Law and Opinion. The first was the increasing importance of an Irish nationalist movement led (in Dicey’s view) by demagogues and pandered to by weak English politicians. The presence of an obstructionist Nationalist party in the House of Commons weakened the institution and threatened the unity of the empire.28 The second issue concerned expanding the franchise to women and the remaining men. Dicey thought that the addition of inexperienced, uneducated, and emotional electors would undermine English power in the face of an increasingly threatening German empire.29

The most famous part of the book is Dicey’s description of the three currents of public opinion that each had a turn dominating English lawmaking. Lectures IV through VIII explain how the century was divided into thirds, with a different current dominant in each part. During the first third of the century Toryism was the dominant creed; in the middle third, individualism (or Benthamism); and in the final third, collectivism (or socialism). Dicey left no doubt that he preferred the era of individualism and that he feared that collectivism would lead to disaster.

Dicey was an individualist. He identified several versions of individualism but focused on Jeremy Bentham (1748–1832) as the summarizer of individualism and the inspiration for Liberal thinkers and politicians. Benthamite liberalism, or Benthamite individualism, accepted the principle of “laissez faire.” Laissez faire was a “war-cry . . . [sounding] the attack upon every restriction, not justifiable by some definite and assignable reason of utility . . .” (107). Therefore, the sole justification for interference in the freedom of individuals was, as Mill said, the protection of the freedom of other individuals. Further, this provided an argument for as small a government as possible (362). The state should not do what individuals could do for themselves. “State help kills self-help” (182). It should not regulate wages or provide free elementary education or interfere with trade. The state should tax only to raise revenue for its basic duties and not to equalize wealth.30

Individualism and collectivism had “different, if not absolutely inconsistent, ways of regarding the relation between man and the State” (212–13). The former saw individuals as “separate persons” (213) and wanted their relations guided by laissez faire. The latter saw citizens as “parts of the great organism” (213) of the state and trusted the state to arrange their affairs; indeed, its “fundamental principle” was “faith” in the benefit when the state intervenes, even where the people could do things themselves (183). Therefore “opposition to laissez faire . . . is characteristic of every collectivist” (163). For these reasons, in 1914 Dicey claimed that collectivism threatened “the gravest danger to the country” (398). Here we must note how broadly Dicey defined collectivism. He was not arguing against Karl Marx. Marx was not mentioned in the book, and it could be argued that Marxism was not very influential in England until after World War I. The Labour Party in Britain was not yet a force in Parliament in early 1905. Marx and the Labour Party would certainly be included as collectivists, but in Law and Opinion Dicey was primarily focused upon Liberals arguing in favor of free elementary education, old age pensions, and trade unions.

Dicey also attempted to explain why Benthamism had declined and why collectivism had became the main current of opinion. Essentially he was asking why England in 1905 was no longer the Benthamite country it had been in 1850. The working class obviously believed in collectivism. It was comfortable with restraining the freedom of individuals in all aspects of life and trusted the state as a tool of their class. Toryism never accepted laissez faire, and Tory philanthropists and High Church Anglicans were “conscious or unconscious allies of collectivism” (289). More surprising, perhaps, was Dicey’s recognition that Bentham’s principle of utility could give justification to collectivism: the majority were the poor, and the society should be organized for their benefit (216). Some Benthamites, such as Mill, made an attempt to harmonize utilitarianism with working-class goals. Even the creation of large joint stock companies was a danger, since they promoted “corporate energy” over “individual” energy (175).

These lectures have an elegiac undertone. They tell the story of a civilization progressing and then regressing. In 1911 Dicey described himself as belonging to a generation that “is already part of the past.”31 We find this sentiment in many of his letters, and we find the statements laced with sorrow and concern and a hint of bitterness. Periodically he could be optimistic about the future, whether in his belief that counter-currents could change public opinion, or in his belief that England was fundamentally an individualistic country, or when, in a rare mood of optimism, he could write: “I have no belief myself that England will in the long run be converted into a socialistic state. The rich and the educated will somehow or other get the upper hand. . . .”32 However, Dicey was more frequently pessimistic: the Benthamite Liberals were losing on issues such as Irish Home Rule, women’s suffrage, protectionism, old age pensions, and poor relief.

In 1922 Dicey expressed doubts as to whether he had had any “influence on the course of public opinion.”33 This is not the place for an extensive discussion of the influence of Law and Opinion, but Dicey would be gratified at the attention his book received. If one browses the indexes of books in a typical law library, one will find that Dicey’s Law and Opinion pops up with a fair amount of frequency.34 Half of the references are critical,35 yet other twentieth-century writers saw Dicey’s book as having a continuing value, particularly Classical Liberals or Individualist Conservatives.36 And how many books get mentioned in an American Supreme Court judgment? In 1949 the state constitution of Arizona was changed to enshrine the right to work for workers—that is, the right to work in a unionized shop without having to join a union. The Supreme Court rejected a challenge by the American Federation of Labor, and Justice Felix Frankfurter cited Law and Opinion in his concurrence, writing that the law must be a compromise of the freedom of association and the disadvantages these associations might produce for individuals.37 Dicey’s book is not that out of place today; it resonates for writers debating the meaning of Liberalism.

[4. ]Richard Cosgrove, The Rule of Law: Albert Venn Dicey, Victorian Jurist (Chapel Hill: University of North Carolina Press, 1980), 6. In passing, Dicey mentioned original sin (393), but since he was not a particularly devout Christian, we are better off interpreting human nature in Benthamite terms—that is, that individuals universally pursued pleasure and sought to avoid pain.

[5. ]Law and Opinion; page numbers cited within the text of this introduction refer to this volume.

[15. ]Rait, Memorials, 1–2. Dicey specifically mentioned several authors who kindled his interest in public opinion: Mark Pattison’s contribution on English religious thought to Essays and Reviews (1861), W. E. H. Lecky’s A History of the Rise and Influence of the Spirit of Rationalism (1865), and, “above all,” his cousin Leslie Stephen’s English Thought in the Eighteenth Century (1876) and The English Utilitarians (1900).

[20. ]Please note that Dicey chose to say England rather than Britain. Dicey’s vision of England would annoy many. See, for example, where Dicey suggested that England, unlike other countries, lacked emotional historical hatreds (329), or where he defined imperialism as the policy of maintaining unity (319n63).

[34. ]For a diverting day I, with the aid of my research assistant Alison Wrighton, browsed through roughly 1,100 books in my university’s law library and found Dicey mentioned in the index of 140 of the books. The majority of the references were to The Law of the Constitution, but approximately 50 of the books mentioned Law and Opinion.

[36. ]For these terms, see Terence Ball and Richard Dagger, Political Ideologies and the Democratic Ideal, 5th ed. (New York: Pearson-Longman, 2004), 68, 106. F. A. Hayek, in The Constitution of Liberty, described Law and Opinion as “the classical description of the manner in which ideas at a long interval affect policy” ([Chicago: University of Chicago Press, 1960], 445). The foreword to the seventh edition of Russell Kirk’s The Conservative Mind assumed a familiarity with Law and Opinion ([Chicago: Regnery, 1986], 3, 8–9). See also Roscoe Pound, Interpretations of Legal History (Cambridge: Cambridge University Press, 1923), 118–19, and Carleton Kemp Allen, Law in the Making, 6th ed. (Oxford: Clarendon, 1958), 413. For other writers influenced by Dicey, see Henry Parris, “The Nineteenth-century Revolution in Government: A Reappraisal Reappraised,” Historical Journal 3, no. 1 (1960): 17.

[37. ]American Federation of Labor v. American Sash & Door Co. 1949. (335 U.S. 538, 69 S. Ct. 258); for more on the history of the right-to-work issue, see Gilbert J. Gall, The Politics of the Right to Work (New York: Greenwood, 1988); Michael S. Wade, The Bitter Issue (Tucson: Arizona Historical Society, 1976). In other places Frankfurter was critical of Dicey’s “‘moribund unrealities’” with respect to administrative law. See his foreword to “Current Developments in Administrative Law,” Yale Law Journal 47 (1938): 517, cited in F. A. Hayek, The Constitution of Liberty (Chicago: University of Chicago Press, 1960), 496n38.